This End User Agreement (Agreement) sets out the terms upon which Dynamic Methods will the licensee (You/Your) to use Apply Now (Product).
1.1 In order to use the Product you must agree to and accept the terms of this Agreement. If You do not, or cannot, agree to the terms of this Agreement, you are not permitted to use the Product and You should not use the Product. The use of the Product including the acceptance of the terms of this Agreement shall be taken to constitute an application by You to Use the Product.
1.2 Dynamic Methods will provide a user name or user ID(s) and password(s) for You to access the Product on Your behalf via a website nominated by Dynamic Methods. It is a condition of this Agreement that You keep any password(s) confidential and not share these passwords with any third party.
1.3 The rights granted under this Agreement will commence on the Commencement Date and will continue until they are terminated under this Agreement.
1.4 It is a condition of this Agreement that You must not:
(a) allow anyone other than You to use the Product;
(b) distribute, sell or otherwise make the Product available to any third party without the express consent of Dynamic Methods;
(c) infringe Dynamic Methods Pty Ltd's Intellectual Property Rights or any other third party Intellectual Property Rights;
(d) use the whole or part of any of the Product in an unlawful manner, including for any anti-competitive purpose, or to create, reproduce, distribute or publish any material which is defamatory or otherwise unlawful;
(e) modify, adapt, translate, decompile, decipher, disassemble, reverse engineer or otherwise decrypt the whole or any part of the Product or create derivative works of the Product;
(f) use the Product or exercise any copyright in respect of the Product other than as permitted under this Agreement;
(g) insert viruses, HTML, Javascript and SQL Injection, and other similar intrusive programs into the Product; or
(h) make any changes or modifications to, or create derivative works, based on the whole or any part of the Product.
1.5 You acknowledge and agree that:
(a) the Product is provided on an "as available" and "as is" basis;
(b) You agree to use the Product without any modification or variation, electronically or otherwise;
(c) Dynamic Methods will prescribe minimum requirements for Your devices in order for You to use the Product and You are responsible for ensuring that You meet any such requirements.
(d) the Product, or parts of the Product including without limitation the software platform, user interface and electronic forms and agreements, may be modified, updated, replaced, deleted or enhanced by Dynamic Methods without notice from time to time in its absolute discretion.
(e) Dynamic Methods may engage and appoint an External Provider to provide technical or product support in relation to the Product;
(f) If the Product is hosted by an External Provider on behalf of Dynamic Methods, then You must accept the usual terms of use of any such External Provider to access the Product; and
(g) If, through any use, malfunction, error or abuse of the Product, You obtain access to personal information or any other data or information belonging or relating to Dynamic Methods or any other User of the Product, then You acknowledge and agree that You will immediately notify Dynamic Methods of such malfunction or error and undertake that You will not, pending rectification of the malfunction or error, use, sell, publish, or in any way distribute such data or information and You also undertake to indemnify Dynamic Methods for any loss caused by Your use of such data or information.
1.6 Technical and product support is available for the Product on (08) 7329 4000 between 9:00am and 5:00pm (CST) Monday to Friday, excluding public holidays. Technical support is limited to the technical use of the Product but does not extend to issues related to the operation of Your computer hardware, operating systems, software, network, Internet connection, firewall or anti virus software.
1.7 You acknowledge that Dynamic Methods and others may suffer direct or indirect loss and damage through the unauthorised use or unlawful disclosure, copying or distribution of the Product or information obtained through use of the Product by You and/or if You use the Product through or in conjunction with equipment or software which does not meet the requirements for Your computer as notified to You in accordance with this Agreement.
2.1 You acknowledge that all title, Intellectual Property Rights including copyright and other proprietary rights to the Product are owned by Dynamic Methods and/or their licensors or External Providers.
2.2 You acknowledge that the Product may incorporate software or other information which is subject to Intellectual Property Rights owned by other third parties or External Providers.
2.3 You acknowledge that You do not acquire any:
(a) Intellectual Property Rights or any other rights in respect of the Product or any part of it; or
(b) an interest in any Intellectual Property Rights of any third party which are incorporated in the Product.
2.4 You acknowledge that the trade marks which appear in or are produced through the use of the Product are owned by Dynamic Methods and/or other third parties and External Providers and that You must not infringe the rights in those trade marks.
2.5 You must notify Dynamic Methods immediately on becoming aware of any suspected infringement or alleged infringement by You, or anyone else of the Intellectual Property Rights in the Product.
3.1 You agree that Dynamic Methods and its External Providers are not responsible and have no liability:
(a) if You fail to operate or use the Product correctly or in accordance with any user guides or instructions provided by Dynamic Methods or the External Providers from time to time or if You use the Product in breach of this Agreement;
(b) if any equipment or software (including any browser or server software operated by a third party or an External Provider) fails when used with or in connection with the Product;
(c) if You use the Product through any equipment or software which does not meet the requirements notified to You by Dynamic Methods or any External Provider;
(d) if a computer virus enters and/or damages Your computer system or network as a result of the use of the Product;
(e) for the telecommunications system or internet service providers which You use to access the Product or any failure of any telecommunications system;
(f) for the operation of any software You install to enable Your use of the Product; or
(g) if You fail to ensure that Your information contained in the Product is correct at all times; or if You fail to advise Dynamic Methods of any changes to such data; or if You supply incomplete or incorrect data to Dynamic Methods at any time.
3.2 To the extent permitted by law, Dynamic Methods makes no representations or warranties, either express or implied:
(a) in relation to the accuracy, completeness, quality, merchantability, performance or fitness for a particular purpose of the Product;
(b) that the Product will meet Your requirements;
(c) that the operation or use of the Product will be uninterrupted or error-free or that any errors or defects will be corrected; or
(d) regarding the interoperability, compatibility or coexistence of the Product with Your operating system, software, particular network environment or hardware.
3.3 To the maximum extent permitted by law, Dynamic Methods and/or any External Provider are not liable to You in respect of:
(a) any loss, damage or injury (including without limitation any direct loss, loss of profit, loss of data, indirect or consequential loss, damage or injury or loss of opportunity, business interruption) whatsoever, arising from the non-supply, supply or use of the Product or in relation to any person's use of or reliance on the Product even if Dynamic Methods has been advised of the possibility of such damages; or
(b) any defect, failure or other deficiency in the Product, whether arising out of any breach of this Agreement or whether arising under contract, tort (including negligence), equity or statute. You release Dynamic Methods and the External Providers from any claims arising in connection with the use of the Product.
3.4 Notwithstanding any other provision in this Agreement, You indemnify Dynamic Methods and the External Providers against all losses, claims, liabilities, costs (including legal costs on an indemnity basis), damages and expenses which Dynamic Methods and/or the External Providers may incur as a result of Your breach of this Agreement.
4.1 Dynamic Methods may, in its absolute discretion, terminate this Agreement:
(a) immediately if You breach any of the terms of this Agreement. Dynamic Methods may elect to offer You the opportunity to rectify any breach upon such terms and conditions as Dynamic Methods may in its absolute discretion determine;
(b) if You are an individual, You become bankrupt.
4.2 In addition to the rights in clause 3.1, Dynamic Methods may terminate this Agreement at any time without cause by giving You not less than 30 Business Days notice in writing or via the Product.
4.3 You may terminate this Agreement at any time without cause by giving not less than 30 Business Days notice in writing to Dynamic Methods.
4.4 If this Agreement is terminated:
(a) Your right to use the Product is immediately revoked from the time of termination of the Agreement and Dynamic Methods will immediately suspend Your access to the Product;
Notwithstanding any other provision of this Agreement, Dynamic Methods will not be liable to You for any failure to fulfil any term of this Agreement if such fulfilment is delayed, prevented, restricted or interfered with due to any legislative change, hardware or software failure of the Product, virus infection, power or telecommunications outage or failure, failure of the internet or a Force Majeure Event.
6.1 Dynamic Methods may vary this Agreement at any time and in its absolute discretion, by giving You 10 Business Days written notice or by publishing the variations on the Apply Now website. Your continued use of the Product will constitute acceptance of any such variation. Any other changes to this Agreement must be agreed to in writing by both Parties.
6.2 This Agreement constitutes the entire understanding and agreement of the Parties and supersedes any and all other communications, negotiations, arrangements, agreements and representations, either oral or written by either Party or its officers, employees or agents, made prior to the Commencement Date.
6.3 If a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed from the remainder for the purposes of enforcement in that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
6.4 Any failure by Dynamic Methods to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision.
6.5 It is a condition of this agreement that You must not assign, sub-licence, transfer or novate this Agreement or all or any of Your rights or obligations under this Agreement without Dynamic Methods's prior express written consent. You must not permit any third party to use or copy the Product. Such actions by You will be considered a repudiation of this Agreement entitling Dynamic Methods to terminate this Agreement and recover damages.
6.6 Dynamic Methods may assign this Agreement to any successor to Dynamic Method's business or any party nominated by Dynamic Methods.
6.7 Dynamic Methods will, in relation to the collection, use and disclosure of 'personal information', including ‘sensitive information’ (each term as defined in the Privacy Act 1988 (Cth) (the "Act")), comply with the Apply Now Privacy Policy (the "Privacy Policy"). The Privacy Policy can be found at Apply Now Privacy Policy . This Privacy Policy does not form part of this Agreement and only applies to the extent that Dynamic Methods collects, uses and discloses personal information (including sensitive information) and is required by the Act to comply with the requirements of the Act.
6.8 This Agreement is governed by the laws in force in South Australia, Australia and each Party irrevocably submits to the jurisdiction of the courts of South Australia and the Commonwealth of Australia.
6.9 In this Agreement:
(a) headings are for convenience only and do not affect how this Agreement is interpreted;
(b) the singular includes the plural and vice versa;
(c) if a word is defined, its other grammatical forms have a corresponding meaning;
(d) the use of words such as "includes" or "including" means "including but not limited to";
(e) the word "person" includes a firm, a body corporate, a partnership, an unincorporated association or an authority;
(f) a reference to this Agreement or a statute is a reference to this Agreement or statute as amended, varied, novated or replaced from time to time; and
(g) Where a notice is required to be given to You in writing, such notice can be given by Dynamic Methods to You by electronic notice or communication posted or displayed on the Apply Now website or by letter, facsimile or email to the address, facsimile number or email address which You specify on the Application Form, or subsequently notify Dynamic Methods in writing.
Agreement means this agreement including any attachments and annexures (if any).
Authorised User means anyone who use Your user name or user ID and password to access the Product.
Business Day means a day which is not a Saturday, Sunday, a public holiday or a bank holiday in South Australia.
Commencement Date means the date of acceptance the terms of use to use the Product by Dynamic Methods.
External Provider means any person or entity which provides services or equipment to Dynamic Methods in connection with the Product, including hosting services, software and equipment, support services and product development.
Force Majeure Event means without limitation any act of god, inclement weather, failure or shortage of power supplies, floods, drought, lightning strike, fire, lock-out, trade dispute or labour disturbance, any act or omission of any government agency, highways or authorities.
Intellectual Property Rights means all industrial and Intellectual Property Rights throughout the world and includes rights in respect of copyright, patents, trade marks, design, trade secrets, know-how, confidential information and circuit layouts.
Party or Parties means, as the context requires, Dynamic Methods or You, or both Dynamic Methods and You.
Product means the website owned by Dynamic Methods and known as Apply Now, (which is available at www.reiapplynow.com.au or such other website as nominated by Dynamic Methods from time to time).
Dynamic Methods means Dynamic Methods Pty Ltd (ABN 37 149 256 655).
You and Your means the name listed on the Application form and Your Authorised Users (as amended in writing from time to time).